The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-02-24
The Courts Decision.


No. 1865 Robert S. Robertson vs.. State ex rel.
Alonzo G. Smith. Reversed. Opinion Of the Court
by Elliott, CD.
I, The question at the threshold is this: Had the
Circuit Court jurisdiction to hear and determine
the causeY If that court had no power over the
cause, this court. of course. has none
Two things absolutely essential to the
power of a court to decide legal controversy
jurisdiction of the subj ect-matter and jurisdic-
tion of the person. Both must exist, otherwise
il is the imperative duty OF the court to decline
to do more than ascertain and declare that it has
no power to examine or decide the merits of the
controversy Authors and courts agree upon
this rudmentary principle Of law. Neither in
reason nor upon authority can its soundness be
doubted. Power is essential to the validity of
every act. Judicial, legislative or executive.
Where there is no power hear and determine
there can be no judicial decision. Expressions
of individual opinion there may be. but q
judicial Judgment there cannot be- A judicial
Judgment is the product of power, the power Of
the law, and is not the mere expression Of the
individual opinion of judge.
The question is purely and iutrinsicallv one OF
power for the jurisdiction of court consists
solely in it's power to hear and determine ques-
ton brought to it's bar II jurisdiction does not
exist. power is absent; il power is lacking, ex-
preston Of opinion upon any other than juris-
dictional question, although Judicial in FORM is
simply the opinion of its author; valuable, it
may possibly be, as an argument, but effective
as the option of the court 1t il not ''Jurisdic-
tion," SAYS u recent writer, is the right to pro-
nounce Judgment acquired by due process of
law" Herman on Estoppel, Co., At another
place this writer sage, Jurisdiction is authority
to hear and determine" CIbid, 49, Again.
speaking of a court, he says ut must act iu-
Ticia ly in all af aco md
the power conferred by law" (lbid-l In Mills
VS.. Commonwealth, 13 Pa. st. Rep, CIT, the
court said: Jurisdiction Is the power aud an
thority to declare the law. The very word in its
origin imports as much. 1t is derived from the
words juris and dicto-I speak By the law.
Chief. Justice Shaw said: ITO have iurisdic
sion is to have power to inquire into the
fact and apply the law" Hopkins vs. Com,
Metcf, 460) Chief-ius.ic Marshall, speaking
upon kindred subject. said: judicial power
contradistinguished from the power OF th'
laws, has no existence. Courts are mere instru
ments of the laws and can will nothing. los
borne, U. s.; w. S. b., g. Wheat. 1917 In tn,
matter of school manual IA Atl Rep, 878) tn,
Supreme Court of New Hampshire declared tina
there jurisdiction 1t was not only tn
duty of the court not to express opinion, bu
II was its duty not to have an opinion" The Su
preme Court of Texas (Withers VS.. Patterson
27 Tex, 491) said THE jurisdiction of cour
means the power or authority which is conferre
upon a court by the constitution and laws,
hear and determine causes between parties an
carry its Judgment into effect" These are a fe'
only of the many statements that abound in til
books and reports, and declare what all mus
concede to be the law OF the land Acceptiu
these statements as correct then the conclusio
must be that where there is no jurisdiction
there is no power No consideration can be in
agned nor reason conceived which will justify
court in assuming to pronounce q judgmer
where 1t has neither the right nor the power
hear or decide. 1t is only where courts ca
speak by the law that they can rightfully spea
at all.
An expression Of opinion by judicial trbun
where it has power to speak by the law
utterly devoid of force. decision without juri
dicton is judgment only in form, for it is abs
iutcly and everywher void. The author fro
whom we have quoted says: IF court has
jurisdiction it's decision is a nullity, and it ma
tiers not what facts it finds or what questions
decides-in fact they nullites If witho,
Jurisdiction it cannot adiudcAte the real meri
of the case; it cannot adjudicate any other que
tion. whether it be introductory, incidental
collateral Herman on Estoppel, 68)
other author says: Where there Is no iur
disdiction, it does not belong to the proper fun
tions of court to give opinion upon matt
submitted to them for the guidance OF parties
inferior tribunals. The whole business OF a cou
is confined 10 giving decisions in cases proper
before it." Wells on Jurisdiction, 10 In FL
oft vs. Piersoll, l Peters, 1913. the Suprer
Court az the United States said. In speaking
the court "Rut IL it act without authority
judgments aud orders are regarded a. nullitie